The Answer to the Request for Arbitration under the ICC Arbitration Rules is the first written submission that the Respondent to an arbitration must file. The Answer will typically set the main lines of the defence, which will be subsequently developed. The Request for Arbitration as well as the Answer are the documents that will give the arbitral tribunal a first impression of the case, so are important to draft correctly after a proper analysis of potential defences. They may also facilitate settlement if drafted with sufficient detail.
Time Frame for Submitting the Answer to the Request for Arbitration
The Respondent has 30 days from the receipt of the Request for Arbitration from the ICC Secretariat to submit its Answer (Article 5.1 of the ICC Rules). The ICC Secretariat may at any time extend this time limit upon the Respondent’s request on the condition that the application for such an extension contains the Respondent’s observations or proposals concerning the number of arbitrators and their choice and the nomination of an arbitrator (Article 5.2).
Content of the Answer to the Request for Arbitration
The Answer should include the following information:
a. The Respondent’s name in full, description, address and other contact details
This information is usually indicated already by the Claimant in the Request for Arbitration. However, the purpose of this additional request is to ensure that the information provided by the Claimant is up to date.
b. The name in full, address and other contact details of any person(s) representing the respondent in the arbitration
The Respondent should indicate the coordinates of its legal counsel who will receive all the communications between the parties, the arbitral tribunal and the ICC, if any. While no external legal counsel is required, it is typically advised. The Respondent can also indicate the persons within the company that will be kept in copy of all the communications. Putting the internal email of the company may facilitate in-house counsel following the proceedings and avoid the systematic forwarding of emails by external legal counsel to the client.
c. The Respondent’s comments as to the nature and circumstances of the dispute giving rise to the claims and the basis upon which the claims are made
In the Answer, the Respondent should present a basic defence on merits and on jurisdiction of the arbitral tribunal, if applicable, e.g., objections to the existence of an arbitration agreement. The Respondent will have the opportunity to provide a more detailed defence, usually in its Statement of Defence and Statement of Counterclaim, if any. Supporting documents need not be supplied at this early stage of the arbitral proceedings.
d. The Respondent’s response to the relief sought
The Respondent should indicate if it objects to the relief sought by the Claimant, as is usually the case, and to what extent. It should also include all the points on which it would like the arbitral tribunal to decide upon, e.g., any objections to jurisdiction, objections to admissibility, counterclaims it would like to make, etc.
e. The Respondent’s observations or proposals concerning the number of arbitrators and their choice in light of the claimant’s proposals and in accordance with the provisions of Articles 12 and 13, and any nomination of an arbitrator required thereby
If the arbitration agreement does not specify the number of arbitrators and there is no agreement between the parties regarding the number of arbitrators, in principle, a sole arbitrator will be appointed by the ICC Court except for very large disputes. The parties may also negotiate and agree on the nomination of a sole arbitrator, although agreement is rare in practice once a dispute has arisen.
If the arbitral tribunal is composed of three arbitrators, each party will nominate one arbitrator, usually in the Request for Arbitration and in the Answer. If a party fails to nominate the co-arbitrator, the ICC Court will proceed to appoint an arbitrator on its behalf.
The parties may agree upon the procedure for appointing the third arbitrator, e.g., nomination by the parties or by the co-arbitrators. Otherwise, the ICC Court will appoint the third arbitrator, who will serve as the presiding arbitrator (Article 12).
f. The Respondent’s observations or proposals as to the place of the arbitration, the applicable rules of law and the language of the arbitration
If the contract does not provide sufficient information regarding the place of the arbitration, the applicable rules of law and the language of the arbitration, the Respondent should comment on these issues. In the event it disagrees with the Claimant’s position, it should provide arguments and demonstrate the parties’ intention at the time the contract was concluded.
Counterclaims and the Joinder of Additional Parties
If the Respondent brings counterclaims, it does not have to pay any filing fee with its Answer. However, if the Respondent wants to add an additional party to the proceedings, it must then pay a filing fee equal to the filing fee paid by the Claimant (Article 7.3).
The quantification of any counterclaim amount is necessary for the determination of the advance on costs to be paid in accordance with the Schedule of Fees. This amount may be updated later in the arbitral proceedings.
Service of the Answer to the Request for Arbitration under the ICC Arbitration Rules
The Respondent shall submit the Answer to the Secretariat in the number of copies specified by Article 3(1), i.e., in a number of copies sufficient to provide one copy for each party, plus one for each arbitrator, and one for the Secretariat. Thus, for a small arbitration with a Sole Arbitrator and two parties, this means that four copies should be supplied.
A model Answer to the Request for Arbitration under the ICC Arbitration Rules may be downloaded here.